Why traditional leaders should be stopped from making laws for their communities

The basic roles of cultural institutions, as summarized by the Cultural Leaders Act 2011 and the Constitution of Uganda in Article 246, include the following:

Section 8(a)(b) entrusts cultural leaders with the following community responsibilities; Promoting and preserving cultural values, norms, and practices that enhance the dignity and well-being of the people where they are recognized, and Advocating for the development, preservation, and enrichment of all people in their community.

Additional responsibilities, which can be considered common sense roles, may vary from community to community. These include providing guidance on family planning and resolving cultural-related conflicts. For example, a cultural leader in Karamoja can dissuade their community from engaging in cattle rustling, while the Umukuka of the Bamasaba can guide on the Imbalu circumcision calendar.

The critical question is whether the above duties require an assembly to execute them. The answer is no. Can cultural institutions or traditional leaders, such as the King of Buganda or Bunyoro, be allowed to make laws through a general assembly to regulate their own affairs?

The Constitution of Uganda, through Article 246(f), discourages the enactment of laws by cultural and traditional institutions. Section 11 of the Cultural Leaders Act warns leaders like the Umukuka of Bamasaba or the kings of Buganda and Bunyoro against making laws. It explicitly forbids them from exercising administrative, legislative, or executive powers—responsibilities reserved for central and local governments. The Constitution warns that anything ultra vires (beyond the scope of) the Constitution or any Act of Parliament is null and void.

Article 79(1)(2) of the Constitution emphasizes that only Parliament has the authority to make laws for the country. Exceptions are granted to local governments, which may enact subordinate legislation under the authority of Section 38 of the Local Government Act.

Similarly, Section 19 of the Cultural Leaders Act 2011 empowers the Minister of Gender to develop policies to regulate cultural institutions. For instance, Section 19(1) of the Act states that the minister may, by statutory instrument and with parliamentary approval, make regulations to implement the provisions of the Act. One such policy is the National Cultural Policy 2019.

A conservative analysis of the above legal framework shows that cultural institutions are expected to rely on the Ministry of Gender to establish policies on how cultural and traditional leaders should manage their affairs.

Among the Bamasaba cultural institutions, there are ongoing disputes over the establishment of a general assembly. The question arises: what purpose would such an assembly serve in light of Article 246(f), and on what legal basis would it be established? Guidance should be sought from the Solicitor General and the Attorney General.

The Inzu Ya Masaba, as a cultural institution, was established around 2009 by eminent professors and academicians. However, with the enactment of the Cultural Leaders Act 2011, its original constitution effectively became redundant, as all provisions inconsistent with the Act had to be set aside.

Legal experts, such as former Chief Justice of Uganda George Masika, are well aware of this and support the provisions of the Cultural Leaders Act 2011. In Uganda, it is an offence for anyone other than Parliament to make laws. If laws are to be made, they must be based on proper authority.

Regarding the Inzu Ya Masaba constitution, what authority was used as the basis for such a document? The answer appears to be none. I am tempted to conclude that the Constitution lacks legitimacy.

Many scholars and interlocutors concerned with this issue encourage cultural institutions to establish a council of elders to guide cultural or traditional leaders, rather than forming a law-making body such as an assembly of elected members. The framework for establishing such a council should align with Section 19(1) of the Cultural Leaders Act 2011.

In conclusion, are cultural institutions meant to make their own laws in light of the existing legal framework? No. Instead, cultural institutions should petition the Ministry of Gender to develop as many regulations and policies as needed for the smooth management of their communities. They should not masquerade as lawmakers without the requisite authority.

The writer is the spokesperson for the Bamasaba Cultural Institution and a student of Master’s in Law.